Shouldn't Patent QA Specialists Get Things Right More Than 75% Of The Time?

from the even-25%-sounds-high dept

A recent lawsuit sheds even more light on just how poor quality control is at the US Patent & Trademark Office. The lawsuit specifically was over the firing of a quality assurance specialist, who's supposed to review patent examiner decisions to determine if errors were made in granting or rejecting claims. The guy was fired after it turned out that a random review showed his reviews erred 35% of the time. The guy complained that it was just a random sample rather than looking across his entire body of work, but that's not all that interesting here. What's more interesting is that apparently the "reasonable" cutoff for such QA specialists is a 25% error rate. Considering that their entire job is supposed to be double checking the work of patent examiners, you would think that getting one in four claims reviewed wrong would be ringing some pretty big alarm bells concerning the quality of any patent. No wonder so many patents are adjusted when re-examined. Even worse, the guy claims that his 35% error rate wasn't really that bad, saying that his colleagues often erred 45 to 50% of the time. What sort of QA is it that can barely QA itself?

Re:

I hit submit before I realized I was not finished.

Continuing along...

I agree it is a tedious exercise, but a quick read of the CAFC decision (which, by the way was not a patent case, but a case under the Merit System Protection Board) and a few of the relevant comments seem to suggest that only a very few (16) of specific types of his work were reviewed; i.e., cases in which he agreed that an examiner was correct in allowing an application to pass to issue. Assuming this was in fact the case, the difficulty in situations such as this is that reasonable minds can differ over what we would like to be an objective process, but which in fact is laden with subjectivity. Of course, a small sample doesn't help either.

Re: Re: Re:

Merely FYI, I did read the full article, all the comments, and the court decision. As a prior poster noted, quality control reviews are generally limited to those cases in which a patent examiner has determined that one or more claims are allowable and the application can proceed to issue as a patent. As the prior poster also noted, a majority of applications are rejected, and an applicant who disagrees can file an appeal.

The important point to be made is that the review process utilized here to determine if the individual was or was not correct is quite subjective. Given the same set of facts, other persons could quite reasonably come to an opposite conclusion. As nice as it would be for the process of examining an application to be totally objective, that is simply impossible to achieve.

Quality control? We've heard of it.

Quality control checks are mostly done for allowed cases. Considering most cases an examiner deals with result in rejections, and only a very limited number of these cases are actually allowed, there may or may not be a problem here.

I think the quality control for rejections is the board of appeals, and rightly so.

Patent Q&A

First, the IP status in this country is in disrepair; granted. We need to stop catering to the wealthy (the standard "Welfare for the Wealthy" we find with our system; though note, this is a problem with CONGRESS, not the USPTO).
So, there is a sound fundamental reason to be skeptical of the system as it exists.
We need to change to "first to file", and require that any prospective IP grant (especially patents) be subjected to review by the public before grant.
BUT, at least TRYING to improve quality with a QA function, and enforcing standards in such a function, is a GOOD thing! If it is so hard to do that there is a high error rate (and to me, 25 percent is a low error rate), so be it - it is better to try and fail than simply "sucking your thumb".
Further, mindlessly criticizing the effort because of personal bias is unwarranted! Stop "pegging" on your personal peeves!